Friday, February 10, 2012


Why do we forget the purpose behind the rules embedded in the criminal justice system? Why are we tempted to fall into a mental cul de sac and view every aspect of courtroom drama as being either pro-accused or pro-victim? And why are we so easily persuaded to make fundamental changes that are rooted more in political opportunism then in considered reform?
These issues were brought into focus with the recent conviction of two men for the murder of Stephen Lawrence, which happened some 18 years ago. This trial only took place because Britain abandoned, after several hundred years, the prohibition against "double jeopardy". In the UK, the State can now come back for a second bite.
The argument for this change was well rehearsed and went largely unchallenged. It does seem to be unjust - and unfair to victims - if a person who has been acquitted can go free forever even if new and overwhelming evidence later comes to light. I agree, it does seem to be unfair.
That there was a reason for the double jeopardy rule was swept away in the light of this unfairness. I cannot recall anyone pointing out that in a prosecution then the State has unlimited resources. It has the police, forensics, prosecutors, all bearing down upon the suspect. The state can ruin that individual’s life without even having to gain a conviction. The argument is, that with its overwhelming power then if the state was permitted to have a second, or third, or fourth, attempt at convicting an individual then that accused could be harassed by the state forever. With infinite resources and unlimited power, any state would be tempted to step on the neck of those it targeted.
Unless, that is, limits were placed on this state power, as it was with the double jeopardy rule. The state shouldn't prosecute unless it is confident it has the evidence to convict. There is no need to rush. And even less need to disregard with contempt the verdict of the first jury, who had the temerity to acquit. This was a safeguard against state persecution and prosecutorial incompetence, swept away in a spasm of social angst over a particularly nasty racist murder.
This issue was only made more complicated because it was not the state who initially attempted to prosecute Stephen Lawrence's killers. It was his family, by way of a private prosecution. And they failed. And having failed, they campaigned to overturn a safeguard against State abuse of power in their quest for personal justice.
It is often said, hard cases make bad law. And this shocking case has led to precisely that position. The Lawrence family may well feel partially vindicated at these convictions, or feel that justice has been done on the part of their son. But in doing what they have, I can't help but wonder if a greater injustice has been done to our society and to our criminal justice system.


  1. The cjs is an ass, why did it take eighteen years to convict the killers of Stephen Lawrence? And, the state was complicit in covering up the truth that would have lead to conviction all those years ago, yet no prosecution for those responsible for that. The law is not only an ass but it is institutionaly racist, the Lawrence family have been through hell over this and have at least for the sake of their son got justice, of sorts.

    The Lawrences used the resurection of double jeapardy, but they didn't instigate its resurection as far as I am aware. In most cases, double jeapardy can and will lead to more injustices, but in the Lawrences' case it worked to bring about some sort of justice, and that might be the only good outcome from double jeapardy, but the root cause of injustices in the system is the rotten, racist and barbaric cjs.

  2. Safeguards are in place ---the DPP has to give his express consent for such a case to be referred to the Court of Appeal, who may or may not order a retrial. Only done for serious offences (e.g. rape and murder), and only when new and compelling evidence AND in the interests of justice (to prosecute again). It will happen only rarely.

    Before the change, we’d see people selling their own story to the press (bragging that they’d actually been guilty despite jury verdict to the contrary) …also, what about when DNA later shows that someone was actually guilty despite being acquitted.

    I think everyone concerned in the re-prosecution decision will always take very great care …otherwise, as poster says, it would certainly be damaging to the rule of law (and, definitely affect the professional reputations of those decision makers responsible for any descent down the obviously awaiting slippery-slope, if you seee what I mean...)

    The first re-tried murderer was a scumbag called Dunlop, who got a life sentence in 2006 for the cowardly killing of Julie Hogg in 1989 (Ms Hogg lived round here BTW).

    Seems OK to me!

  3. There is a control on double jepordy, that there has to be significant new evidence, and you have to convince the judiciary that there is significant new evidence. In this case, new DNA was found to lead to the conviction.

    The main issue I see with the Lawrence case is the potential for an Article 7 ECHR violation, which prevents you of being convicted of an offense that was not an offense at the time you committed it.

    THese guys have effectively had a retroactive change of the law to convict them, as after their first trial they were innocent in the eyes of the law. After the 2003 Act they were once again guilty in the eyes of the law.

  4. Re Euro law, interesting points. As I understand it, the Art 7 ECHR ‘no punishment without lawful authority’ prohibition on retrospective application of new statute, deals with whether or not something was criminal back in the day. Murder, rape, manslaughter certainly were just as criminal before CJA 2003 as they are now. Thus I think Art 7 ECHR is not engaged.

    Art 6 ECHR (rt to fair trial) also not engaged because of safeguards re publicity etc embodied in the 2003 Act, and fact that it is anyway a pretty enormous threshold to get across before retrial under CJA (as I mentioned in post above).

    So, I do think Art 6 (rt to fair trial) and Art 7 of ECHR are not engaged, but something called Art 4 (1) of Protocol 7 to the ECHR needs to be considered…it expressly rules out legality of dble jeopardy (the right not to tried or punished twice). However, and this is a big however (!), Art 4 (2) goes on to qualify this, by saying that double jeopardy is legal after all, IF there is evidence of new or newly discovered facts. UK hasn’t ratified this anyway, but we will soon (probably). Thus the double jeopardy rule change (brought about by CJA 2003) DOES seem to be totally euro-compliant (that is, there are no grounds for ECtHR to reverse it).

    Actually, recourse to dble jeopardy since CJA came into force in 2005, has not been common. Dunlop was the first, but the second request by then DPP to the CA to order a retrial, the Crt of Appeal actually refused. All good!

  5. If England and Wales had a civil law type trial were all cases were heard before a judge or panel of judges I might agree. However, there is a jury system, which adds an extra element to the trial.

    For conviction, you need to have intention (mens rea)+ action (actus reus)+no defense+jury believes you deserve to be convicted.

    As a jury can acquit even if they think you are within the letter of the law "guilty," the possibility of a re-trial can be an attempt to change the belief that you deserve conviction. And as juries do not give reasons for conviction (a technical Article 6 violation in its own right, although waived by the ECHR), there is no way to determine if the original verdict was due to not satisfied as to facts or the fairness of the law.

  6. Juries not giving reasons is to my mind a safeguard, rather than anything acting to lessen ‘justice’. Once reasons are required, juries would have no real room for those counterintuitive verdicts which make our system so quixotic & actually rather great. We all know of cases where defendant is obviously guilty in the eyes of the law (and where the judge 'expects' the jury to duly find a guilty verdict) ---but they come back with a 'not guilty'. The Americans call this 'jury nullification'.

    look up the case of Clive Ponting (re civil servant who revealed --obviously illegally, given the fact that he had signed the Official Secrets Act --- that Thatcher cynically got it wrong as to which way Belgrano was steaming 30 yrs ago. Jury came back with a 'not guilty'! [Great, I thought.]

    Also, on a less grand scale, this sort of thing happens all the time in crim trials in our Crown Courts. Requirement for reasons, would inhibit the potential for this sort of unruly jury behaviour LOL.

    But ----as you point out---- Euro law has recently ruled (in the 2009 ECtHR case Taxquet v Belgium) that verdicts from juries, without reasons, do actually infringe Art 6 (1). It has been always assumed here that they didn’t violate Art 6. Now that it seems that jury verdicts absent reasons are incompatible with euro law, it’s not entirely clear whether our way of doing things can survive. This development never appears in the media here, which you’d think it would (given that most of our press is rabidly europhobic) –dunno why they don’t go to town on it. Could be a wonderful excuse for more foaming at the mouth euro bashing. Maybe they don’t know about it?!??

    But it is possible to say that euro law’s 2009 clarification of article 6 ECHR may have begun the reversal of Magna Carta by requiring that jurors provide reasons for their decisions. Of course, anyone getting as far as the Supreme Crt and relying on the Grand Chamber’s (in Taxquet) finding of violation of Art 6 (1), may well find that the justices refuse to apply the Strasbourg authority ---whether by elegant distinguishing, or by just crudely ignoring.

    Sooner or later, we will see!

  7. Ben, I can see what you are saying and thought I'd bring this to the front of your mind.

    I have put "Equality of arms" because I believe that if they can continue to have trial after trial, then we the Jo-public should be allowed re-trial after re-trial?
    and yes I mean re-trial NOT appeal :)

    Equality of arms – neither party in
    either civil or criminal trials should be
    procedurally disadvantaged
    Declaration of incompatibility – the
    High Court (and some other courts)
    can make a declaration where it is
    satisfied that a provision of primary or
    secondary legislation cannot be
    interpreted compatibly with an ECHR
    right. However, the declaration does
    not directly affect the continuing
    operation of that provision.


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